92 Decision Citation: BVA 92-24744
Y92
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 90-54 519 ) DATE
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THE ISSUES
l. Entitlement to restoration of an 80 percent evaluation
for a seizure disorder.
2. Entitlement to restoration of a total rating based on
individual unemployability due to service-connected
disabilities.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
A. A. Booher, Counsel
INTRODUCTION
The veteran had active service from November l972 to April
l974.
This appeal is taken from the action by the Department of
Veterans Affairs (VA) Regional Office (RO) in Roanoke,
Virginia, in July l989, which reduced the veteran's 80
percent evaluation for grand mal seizures to 40 percent,
effective October l989, and terminated a total rating based
on individual unemployability effective October l, l989. In
addition to service connection for a seizure disorder, the
veteran also has service connection for acne vulgaris, for
which a noncompensable evaluation is assigned. The veteran
filed a notice of disagreement in July l989; a statement of
the case was issued in October l989. The case was initially
forwarded to and placed on the docket of the Board of
Veterans' Appeals (the Board) in February l990.
In a decision by the Board in June l990, the case was
remanded for additional development. The case was returned
to the Board in July l992. The veteran's representative
throughout the appeal has been the American Legion, which
has presented written arguments on his behalf, the most
recent of which was in September l992.
REMAND
As noted in the Board's June l990 decision, while the case
was initially certified only on the issue of entitlement to
an increased evaluation for the seizure disorder, rated as
40 percent disabling, it is clear that the veteran's current
appeal is from both actions as shown on the front page of
this decision. Furthermore, since the question of a total
rating due to individual unemployability clearly encompasses
all service-connected disabilities, the evaluation of the
service-connected acne vulgaris is inextricably intertwined
with the other issues on appeal, and as such, must be
considered prior to further appellate review.
When the case was returned to the Board, any VA clinical
records more recent than l986 were, for the most part, not
in the file. In l99l, when the veteran was seen at an
outpatient facility, it was noted that his file was not
available. It is unclear where his records for the period
from l986 until present, including ongoing current treatment
files, are located.
In l988, the veteran was involved in VA Vocational
Rehabilitation training; these records are not in the file.
In the past, the veteran had referred to the award of Social
Security Disability benefits, apparently commencing in the
late l970's. It is unclear whether these payments continue,
and if not, on what basis they were terminated. There is
evidence that the veteran is now employed as a day laborer;
it is unclear the extent to which he is working, whether his
employment is of a marginal or substantial nature, or other
pertinent facts relating thereto. The veteran has indicated
that he has been precluded from working in any number of
other jobs by virtue of his seizures, and that prospective
employers will not hire, or have not hired, him when they
learn of his seizure disorder; however, specific instances
have not been documented. There is also some indication
that the veteran's compliance with a medication regimen is
not complete. On the most recent VA examination in l99l,
the veteran was found to have acne involvement of the face,
chest and back with disability considered mild to moderate.
It is not shown that the RO has reevaluated his
service-connected skin disorder.
The Board is mindful of the VA's obligation to assist the
veteran in the development of evidence pursuant to
38 U.S.C.A. § 5l07(a) (West 1991), as well as recent
pronouncements by the United States Court of Veterans
Appeals. Accordingly, the Board finds that the case must be
REMANDED for the following actions:
l. After appropriate authorization, the
RO should obtain all pertinent records
relating to the award of Social Security
benefits, including but not limited to,
all medical evidence, and current award
and/or information concerning termination
of any prior awards, etc. This evidence
should be added to the claims folder.
2. The RO should obtain the veteran's
complete VA outpatient and inpatient
treatment records from l986 to the
present, including his Vocational
Rehabilitation subfolder, and these should
be added to the claims folder. If the
veteran has not been seen at VA
facilities, this should be so certified by
the custodian of hospital or clinic
records. The veteran should also be
requested to provide information as to any
private and/or military facilities where
he has received treatment since l989, and
after appropriate authorization, his
records should be obtained by the RO. In
requesting his records from treating
facilities or private physicians, the RO
should ask that any records reflecting the
medication prescribed for the veteran's
seizure disorder and the dosage be
included.
3. (a) The veteran should be requested
by the RO to provide as much information
as possible about his attempts to obtain
employment, prospective employers who
turned him down for work and statements
from them in this regard, if possible, as
they may relate to his seizure disorder,
as well as the nature and extent of any
current employment.
(b) The veteran should be requested to
provide copies of his Internal Revenue
Income Tax Returns for l99l, l990 and
l989, and these should be added to the
claims folder.
(c) The veteran should also be
requested to provide evidence concerning
the status of his drivers' license, any
restrictions which may apply, date(s)
terminated or reinstated, etc.; he should
be requested to indicate whether he is now
able to and does in fact drive a motor
vehicle and under what circumstances.
4. After completion of the above, the
veteran's claim and the entire record,
including the claims folder and all
evidence obtained pursuant to this remand,
should be reviewed by a neurologist who
has not previously evaluated him, on a fee
basis if necessary, and an opinion should
be expressed as to the exact nature and
extent of his seizure disorder and all of
its components, i.e. whether he has major
and/or minor seizures, the correct
diagnosis(es), the nature, frequency and
duration thereof, and all other pertinent
factors related to the disability
picture.
5. After completion of the above, the RO
should consider the veteran's claim in the
light of all evidence of record and all
issues, evaluating his service-connected
seizure and skin disorders. The issue of
unemployability must be considered in
conjunction with all service-connected
disabilities, and specific criteria set
forth for evaluating seizure disorders.
If the decision remains adverse, the RO
should prepare a supplemental statement of
the case, and the veteran and his
representative should be afforded the
opportunity to respond.
The case should then be returned to the Board for further
appellate review. The veteran need do nothing until notified.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
*
JANE E. SHARP
PHILIP E. WRIGHT
*38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board of
Veterans' Appeals Section, upon direction of the Chairman of
the Board, to proceed with the transaction of business
without awaiting assignment of an additional Member to the
Section when the Section is composed of fewer than three
Members due to absence of a Member, vacancy on the Board or
inability of the Member assigned to the Section to serve on
the panel. The Chairman has directed that the Section
proceed with the transaction of business, including the
issuance of decisions, without awaiting the assignment of a
third Member.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 57 Fed. Reg. 4126 (1992)
(to be codified as 38 C.F.R. § 20.1100(b)).